EUGENE JENKINS, PETITIONER V. UNITED STATES OF AMERICA
No. 90-5163
In The Supreme Court Of The United States
October Term, 1990
On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Eleventh Circuit
Brief For The United States In Opposition
OPINION BELOW
The opinion of the court of appeals (Pet. App. 1A-11A) is reported
at 901 F.2d 1075.
JURISDICTION
The judgment of the court of appeals was entered on May 22, 1990.
The petition for a writ of certiorari was filed on July 16, 1990. The
jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).
QUESTIONS PRESENTED
1. Whether the affidavit submitted in support of the warrant to
search petitioner's house established probable cause for the search.
2. Whether the agents executing the search warrant properly seized
certain items not explicitly described in the warrant.
3. Whether the district court properly found that petitioner's
offense involved more than minimal planning and correctly computed his
offense level.
STATEMENT
After a jury trial in the United States District Court for the
Eastern District of Georgia, petitioner was convicted of theft from a
federally insured bank, in violation of 18 U.S.C. 2113(b). He was
sentenced to 27 months' imprisonment, to be followed by a three-year
period of supervised release. Petitioner was also ordered to pay
$6,029.70 in restitution. The court of appeals affirmed (Pet. App.
1A-11A).
1. The evidence at trial showed that petitioner used his position
as an employee of the First Union Bank in Augusta, Georgia, to steal
more than $25,000 in cash, $8,000 in checks, and $100,000 in
securities from the bank. Gov't C.A. Br. 2.
Petitioner was a security guard at First Union Bank in Augusta,
Georgia. On January 1, 1988, the bank contracted with a private
security firm, Sizemore Security, to provide guards for the bank.
Sizemore, which offered employment to the security guards formerly
employed by the bank, paid lower wages than did the bank. Petitioner
and the other guards who accepted Sizemore's offer of employment thus
suffered a pay cut, as well as a loss of benefits, as a result of the
change in employment. Petitioner was unhappy with the change in
employment, both because of the pay and benefit cut, and because he
would not be able to work the night shift whenever he wanted, and thus
would not be able to continue to attend college courses. Pet. App.
3A.
On January 4, 1988, petitioner was assigned to work the 4:00 p.m.
to midnight shift at the bank's building on Broad Street in Augusta.
At 9:30 p.m. on that date, a silent alarm alerted the Augusta Police
Department. Officer Thomas Givens, responding to the alarm, arrived
at the bank at 9:32 p.m. Petitioner met Givens at the side door of
the bank and told Givens that he knew the alarm had been triggered,
even though the alarm cannot be heard or detected inside the bank.
Pet. App. 3A.
Upon investigation, Givens and petitioner, who were later joined by
a representative of the company that serviced the bank's alarm and the
bank's teller supervisor, determined that the night depository vault
had not been locked, although the alarm had been set. The vault
showed no sign of forced entry. Although the vault appeared to
contain fewer bags than normal, the missing bags were not found after
a search of the immediate area. An investigation the next day showed
that $25,344.70 in cash, $8,498.99 in checks, and stock certificates
with a current value of $101,741.64 were missing from the vault. Pet.
App. 3A.
2. On January 20, 1988, FBI agent Ann Todd applied to a federal
magistrate for a warrant to search petitioner's residence. Her
accompanying affidavit recited the details of the theft from the First
Union Bank's night depository vault; explained that none of the
bank's cleaning crew had been in the building when the silent alarm
was activated; and stated that the FBI's investigation had focused on
petitioner because (1) he was the only person in the bank at the time
the alarm was activated who had keys to the bank, (2) he was bitter
over the change of employers, (3) he had told Givens about the alarm's
activation even though he could not legitimately have known about it;
and (4) he was the only person with access to the night depository
vault who had refused to take a polygraph examination. Pet. App. 5A.
The affidavit also stated that a veteran FBI agent had informed
Todd that persons who have stolen money are likely to hide the money
in their homes where it will be both safe and readily available. The
affidavit listed the contents of the night depository on January 4, as
reconstructed by bank employees. Those contents included bank
depository bags and envelopes, deposit tickets, checks, stock
certificates, and cash. The magistrate issued the warrant, which
incorporated the affidavit's description of the evidence sought. Pet.
App. 5A.
On January 22, 1988, FBI agents executed the warrant. In the attic
of petitioner's house, the agents found a tightly wrapped box
containing Christmas decorations. At the bottom of the box, the
agents discovered eight packets wrapped in aluminum foil that
contained a total of approximately $19,000 in cash. In a bureau
drawer in the master bedroom, the agents also found a bank bag from
the Citizens and Southern National Bank (C & S) that contained $300 in
cash and several letters to petitioner from a mortgage company. Pet.
App. 3A-4A.
3. Petitioner was indicted for bank larceny under 18 U.S.C.
2113(b). At a suppression hearing, Agent Todd testified that the C &
S bag did not match the description of any of the bags listed in the
warrant. She explained, however, that the bag was seized because the
agents believed that the depositors whose bags were stolen from the
vault might not have mentioned that the C & S bag was inside a larger
bag. The magistrate recommended that the motion to suppress be
denied, finding that (1) the affidavit's recital of the veteran FBI
agent's statement that persons who have stolen money usually keep the
proceeds in their homes established a sufficient "nexus" between
petitioner's house and the evidence sought, and (2) the agents were
entitled to seize the C & S bag under the "plain view" exception to
the warrant requirement. The district court adopted the magistrate's
report, denied the motion, and admitted the evidence. Gov't C.A. Br.
8-9.
At petitioner's trial, the government introduced evidence
connecting some of the currency found in petitioner's house with cash
stolen from the bank vault, and showing that petitioner, although in
financial difficulty, had paid off a $2,200 arrearage on his mortgage
after the January 4 theft. Gov't C.A. Br. 4 & nn. 2-3.
4. Petitioner's presentence report calculated his base offense
level at four under Sentencing Guideline Section 2B1.1 ("Larceny,
Embezzlement, and Other Forms of Theft"). The report recommended an
eight-point increase in this level because the value of the cash,
checks, and securities that petitioner took from the bank was
$135,585.33 (see Section 2B1.1(b)(1)(I)), a two-point increase because
the offense involved more than minimal planning (see Section
2B1.1(b)(4)), and a two-point increase because the offense involved
abuse of a position of trust (see Section 3B1.3). Pet. App. 10A n.10.
The resulting total offense level of 16, when combined with
petitioner's criminal history category of I, produced a Sentencing
Guidelines range of 21-27 months. Pet. App. 10A.
In objections to the presentence report and at the sentencing
hearing, petitioner argued that the securities he stole should be
valued at $1,017, the replacement value of the stock certificates,
rather than at $101,741, the value of the non-negotiable securities
they represented, and that because his crime was one of opportunity,
it did not involve more than minimal planning. The district court
rejected those arguments and imposed a 27-month sentence. Gov't C.A.
Br. 29.
5. The court of appeals affirmed. Pet. App. 1A-11A. Petitioner
argued that the evidence seized during the search of his house should
have been suppressed because Agent Todd's affidavit did not mention
certain facts that, if included, would have prevented a finding of
probable cause for issuance of the warrant. See id. at 5A-6A. Citing
Franks v. Delaware, 438 U.S. 154, 171 (1978), the court noted that
petitioner "would be entitled to an evidentiary hearing concerning the
allegedly omitted facts" only if he could prove that (1) Todd had
knowingly or recklessly omitted those facts, and (2) their inclusion
would have prevented a finding of probable cause. Pet. App. 6A. The
court then upheld the district court's rulings that the alleged
omissions from the affidavit did not represent material
misrepresentations or misstatements, id. at 6A, and that even if the
omitted facts had been included in the affidavit, probable cause to
search petitioner's house would have existed, id. at 6A-7A. The court
based this conclusion on the affidavit's showing of probable cause
that petitioner had committed the theft, the fact that the items
stolen could have been hidden in a residence, and the statement in the
affidavit by an experienced FBI agent that petitioner's home was the
likely hiding place for the stolen items. Id. at 7A-8A.
Petitioner also argued that the seizure of the C & S bag had
exceeded the scope of the search warrant because the bag was not
described in the warrant. The court concluded that the bag and its
contents were properly seized under the "plain view" exception to the
warrant requirement, because the searches of the bureau drawers in
petitioner's bedroom and the C & S bag itself were within the scope of
the warrant, the agents had probable cause to believe that the bag or
its contents might have been stolen, and it was apparent that the
letters inside the bag were evidence of motive. Pet. App. 8A-9A.
The court of appeals also rejected petitioner's challenge to his
sentence. Pet. App. 10A-11A. Agreeing with the government's argument
that petitioner's sentence should be calculated according to the
victim's loss, which is represented by the value of the property
taken, the court held that in computing petitioner's sentence the
district court had properly used the $101,741.64 face value of the
securities stolen by petitioner rather than the $1,017 cost of
replacing the stock certificates themselves. Id. at 11A. Finally,
the court upheld as not clearly erroneous the district court's finding
that in order to move the stolen goods out of the bank as quickly as
he did, petitioner must have done some planning. Ibid.
ARGUMENT
1. Petitioner initially contends (Pet. 14-16) that Agent Todd's
affidavit did not establish probable cause to believe that any of the
items stolen from the bank would be found at his house. The court of
appeals correctly rejected this fact-bound contention.
Probable cause to search a particular place exists if an issuing
magistrate finds a "fair probability that contraband or evidence of a
crime will be found in (that) place." Illinois v. Gates, 462 U.S. 213,
238 (1983). "(T)he nexus between the objects to be seized and the
premises searched can be established from the particular circumstances
involved and need not rest on direct observation." United States v.
Lockett, 674 F.2d 843, 846 (11th Cir. 1982). "(I)n weighing the
evidence supporting a request for a search warrant, a magistrate may
rely on the conclusions of experienced law enforcement officers
regarding where evidence of a crime is likely to be found." United
States v. Fannin, 817 F.2d 1379, 1382 (9th Cir. 1987). Finally,
"evidence that a defendant has stolen material which one normally
would expect him to hide at his residence will support a search of his
residence." United States v. Maestas, 546 F.2d 1177, 1180 (5th Cir.
1977).
In the present case, as the court of appeals correctly found, Agent
Todd's affidavit provided the issuing magistrate with sufficient
reason to believe that the stolen items would be found at petitioner's
residence. The affidavit clearly established probable cause to
believe that petitioner had committed the theft: he was the only
employee in the bank at the time of the theft with keys to the bank;
he knew that the silent alarm had sounded even though he could not
have heard it; he was bitter over the change in the conditions of his
employment; and he was the only person with access to the night
depository vault who refused to take a polygraph test. The affidavit
also recited the statement of an FBI agent with ten years' experience
in investigating bank robberies and burglaries that petitioner's house
was the likely hiding place for the stolen items. Because the
combination of these facts would lead a reasonable person to believe
that there was a "fair probability" that the contraband would be found
in petitioner's house (Illinois v. Gates, 462 U.S. at 238), the courts
below correctly ruled that the affidavit established probable cause
for the search of the house. /1/
2. Petitioner next claims (Pet. 16-19) that the FBI agents who
executed the search warrant for his house exceeded the warrant's scope
when they seized a C & S bag containing $300 and three letters from
petitioner's mortgage company that was not described in the warrant.
This claim too is without merit. The bag and its contents were
lawfully discovered and seized in the course of the search.
While the Fourth Amendment requires that a search warrant
"particularly describ(e) the place to be searched, and the persons or
things to be seized," and only items described in the warrant may be
seized, United States v. Johnson, 713 F.2d 654, 660 (11th Cir. 1983),
cert. denied, 465 U.S. 1030 (1984), an exception to this rule occurs
"when in the course of performing a lawful search for an item listed
on the warrant, the officers come across other articles of an
incriminatory character." Id. at 660. In such circumstances, the
articles may be seized under the "plain view" doctrine. Ibid. To
justify application of this doctrine, the seizing officer must not
have "violate(d) the Fourth Amendment in arriving at the place from
which the evidence could be plainly viewed," the "incriminating
character" of the evidence must be "immediately apparent," and the
officer must "have a lawful right of access to the object" to be
seized. Horton v. California, 110 S.Ct. 2301, 2308 (1990) (internal
quotation marks and citations omitted).
In the present case, as the court of appeals correctly concluded,
the C & S bag and its contents were properly seized under the plain
view doctrine. The warrant described, inter alia, bank bags and
various categories of documents and other items. It was reasonable
for the agents to search for such articles in the bureau of the master
bedroom. See United States v. Wuagneux, 683 F.2d 1343, 1352 (11th
Cir. 1982) ("a search may be as extensive as reasonably required to
locate the items described in the warrant"), cert. denied, 464 U.S.
814 (1983); see also United States v. Ross, 456 U.S. 798, 820-821
(1982). The nature of the crime and the items taken gave the agents
reason to believe that the C & S bag might have been stolen. It was
reasonable for the agents, who were searching for small paper items
like bills and stock certificates, to look inside the C & S bag. The
letters from the mortgage company they found inside the bag were
"immediately apparent" (Horton v. California, 110 S.Ct. at 2308)
evidence of petitioner's motive to commit the theft. In light of
these circumstances, the court of appeals properly concluded that
"(t)he search did not exceed the scope of the warrant" (Pet. App. 9A).
/2/
3. Finally, petitioner argues (Pet. 19-21) that the district court
erred in its application of the Sentencing Guidelines to his case.
Specifically, petitioner alleges that the district court mistakenly
increased his offense level for "more than minimal planning" under
Guideline Section 1B1.1 and the accompanying Application Note, and
incorrectly computed the amount of loss from the theft. These
arguments lack merit and were properly rejected by the court of
appeals.
a. The phrase "more than minimal planning" is defined in
Application Note (f) to Sentencing Guideline 1B1.1 as "more planning
than is typical for commission of the offense in a simple form. 'More
than minimal planning' also exists if significant affirmative steps
were taken to conceal the offense." In this case, the district court
made a factual finding that petitioner's removal of the stolen items
from the bank involved "careful planning and execution" and showed
that "significant affirmative steps were taken to conceal the
offense." 6 R. 10.
The court of appeals correctly ruled (Pet. App. 11A) that this
finding was not clearly erroneous. See 18 U.S.C. 3742(c). The
evidence presented at trial suggested that petitioner knew that when
he opened the night depository vault, he would trigger the silent
alarm. The district court could therefore reasonably conclude that he
conceived a plan to remove the items from the vault and quickly
transfer them to a hidden location from which he could take them away
from the bank at a later time. The plan was so effective that
petitioner was able to remove the stolen property, hide it so well
that it was not discovered during subsequent searches by police
officers and bank employees, and then return to the banking area to
meet Officer Givens at the door of the bank when Givens arrived two
minutes after the silent alarm had been triggered. Accordingly,
petitioner's offense level was properly enhanced for "more than
minimal planning" (Guideline 1B1.1).
b. The district court correctly used the $101,741.64 face value of
the stolen securities to enhance petitioner's sentence. Sentencing
Guideline 2B1.1 states that the offense level should be calculated
according to the amount of the "loss." /3/ Application Note 2 of the
Commentary to this Guideline defines "loss" as
the value of the property taken, damaged, or destroyed.
Ordinarily, when property is taken or destroyed, the loss is the
fair market value of the property at issue. When the market
value is difficult to ascertain or inadequate to measure harm to
the victim, the court may measure loss in some other way, such
as reasonable replacement cost to the victim.
Petitioner argues that because the stolen securities were
non-negotiable, they should be valued at the $1,017 replacement cost
of the stock certificates. This argument, however, rests on the
mistaken premise that a defendant's ability to make use of stolen
property is relevant to sentencing under the Guidelines. Application
Note 2 to Section 2B1.1 expressly states that "in cases of the theft
of a government check or money order, loss refers to the loss that
would have occurred if the check or money order had been cashed.
Similarly, if a defendant is apprehended in the process of taking a
vehicle, the loss refers to the value of the vehicle even if the
vehicle is recovered immediately."
The Guidelines therefore contemplate that the value of a stolen
item should be based on the market value of the property involved, not
the value to the defendant or, in the ordinary case, the replacement
value of the property. A victim can suffer no actual loss at all, yet
the Guidelines mandate that the defendant's sentence be based on the
value of the property he attempted to steal. In the instant case, as
the court of appeals correctly found, "(petitioner) took from his
victims securities that were worth $101,741.64 to those victims in
some way and at some time" (Pet. App. 11A). Accordingly, the district
court properly used this amount in computing petitioner's sentence.
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
KENNETH W. STARR
Solicitor General
ROBERT S. MUELLER, III
Acting Assistant Attorney General
THOMAS M. GANNON
Attorney
SEPTEMBER 1990
/1/ Petitioner alleges a conflict between the decision below and
the decision of the same court of appeals in United States v. Lockett,
supra. We note that Lockett was decided prior to this Court's
decision in Illinois v. Gates, supra; that the affidavit in the
present case, which relied on the opinion of an experienced FBI agent
to establish a nexus between the items sought and petitioner's house,
would pass muster under the "substantial basis" test of Lockett, 674
F.2d at 846; and that in any event a claim of intra-circuit conflict
does not warrant this Court's review. See Wisniewski v. United
States, 353 U.S. 901, 901-902 (1957). The other cases alleged to be
in conflict with the decision below are either readily distinguishable
on their facts or are consistent with the decision of the court of
appeals. See United States v. Savoca, 739 F.2d 220, 225 (6th Cir.
1984) (observation of known bank robbers in Phoenix, Arizona motel
room does not, without more, establish probable cause to search room
for evidence of Ohio bank robberies three months previously), vacated
on other grounds, 761 F.2d 292 (6th Cir), cert. denied, 474 U.S. 852
(1985); United States v. Freeman, 685 F.2d 942, 949-951 (5th Cir.
1982) (affidavit states probable cause to believe that passports,
personal identification papers, and bank records will be found at
residence; court does not decide whether nexus existed to justify
search of residence for items used in smuggling and distribution of
cocaine); and United States v. Lucarz, 430 F.2d 1051, 1055 (9th Cir.
1970) (warrant valid where nexus rested, inter alia, on type of crime,
nature of missing items, and normal inferences as to where criminal
would hide stolen property).
/2/ The cases upon which petitioner relies here, United States v.
Gray, 484 F.2d 352 (6th Cir. 1973), cert. denied, 414 U.S. 1158
(1974), and Woo Lai Chun v. United States, 274 F.2d 708 (9th Cir.
1960), do not support his argument. In Gray, 484 F.2d at 355, it was
not "immediately apparent" that rifles discovered during a warrant
search for alcoholic beverages were evidence of other crimes. The
court in Woo Lai Chun specifically found "no similarity between the
facts in this case and those where stolen or contraband property, or
articles closely related to that which was sought, have been held
properly seized, even though not described in the search warrant." 274
F.2d at 712.
/3/ This Guideline and the accompanying Application Notes were
amended effective June 15, 1988, after petitioner's offense. See
Sentencing Guidelines, App. C, at C.10-C.11 (Nov. 1989). The court
properly considered the clarifying amendments in its review of
petitioner's sentence. See United States v. Scroggins, 880 F.2d 1204,
1215 (11th Cir. 1989), cert. denied, 110 S. Ct. 1816 (1990).